Intellectual property law is good. Excess in intellectual property law is not. This blog is about excess in Canadian and international copyright law, trademarks law and patent law. I practice IP law with Macera & Jarzyna, LLP in Ottawa, Canada. I've also been in government and academe. My views are purely personal and don't necessarily reflect those of my firm or any of its clients. Nothing on this blog should be taken as legal advice.

Wednesday, February 29, 2012

Has France Just Made the Ultimate Copyright Faux Pas Fomented with a Forbidden Formality?

Last week France passed a law that permits the state to seize authors' rights on books published before 2001. Scribes have just six months to opt-out, or lose their moral rights and the ability to determine a price for their work.

It's essentially a Compulsory Purchase Order for intellectual property - the author's work is no longer their own. Ownership is instead transferred to a quango answering to the French Ministry of Culture, which is authorised to make it digitally available. Publishers are the big beneficiaries.

This appears to be beyond astonishing, if the law does what these reports say. It would appear to be prima facie contrary to the Berne Convention - for the same reasons as many have argued in the Google Books case. Copyright rights arise automatically and require no formalities, at least for citizens of other countries . If you have to "opt out" of a mechanism in another country to protect your rights, that's arguably a forbidden "formality" under Berne and TRIPS.

This is particularly odd coming from France, supposedly the most copyright friendly jurisdiction anywhere and the birthplace of collective licensing.

While many may think that this is a good idea and the way to solve a huge problem with "orphan works" and the "digitization of commercially unavailable books", there will be enormous controversy about whether this is legally viable. This will mainly revolve around whether, even if France can impose such a regime on its own citizens, it can do so to foreigners - and whether any illegality under international law can be saved by the "opt-out" - especially given the severely short time limitation.

At any rate, this is unusual news in an era when the rights ratchet seems only to be going upwards.